The Supreme Court Has Murdered The US Constitution -- Guest Column by John Whitehead

“We are not to simply
bandage the wounds of victims beneath the wheels of injustice, we are to drive
a spoke into the wheel itself.”

Dietrich Bonhoeffer

The untimely death of
Supreme Court Justice Antonin Scalia has predictably created a political firestorm.

Republicans and
Democrats, eager to take advantage of an opening on the Supreme Court, have
been quick to advance their ideas about Scalia’s replacement. This is just the
beginning of the furor over who gets to appoint the next U.S. Supreme Court justice
(President Obama or his successor), when (as soon as Obama chooses or as long
as Congress can delay), how (whether by way of a recess appointment or while
Congress is in session), and where any judicial nominee will stand on the
hot-button political issues of our day (same-sex marriage, Obamacare,
immigration, the environment, and abortion).

This is yet another
spectacle, not unlike the carnival-like antics of the presidential candidates,
to create division, dissension and discord and distract the populace from the
nation’s steady march towards totalitarianism.

Not to worry. This is a
done deal. There are no surprises awaiting us.

We may not know the
gender, the orientation, the politics, or the ethnicity of Justice Scalia’s
replacement, but those things are relatively unimportant in the larger scheme
of things.

The powers-that-be have
already rigged the system. They—the corporations, the military industrial
complex, the surveillance state, the monied elite, etc.—will not allow anyone
to be appointed to the Supreme Court who will dial back the police state. They
will not tolerate anyone who will undermine their policies, threaten their
profit margins, or overturn their apple cart.

Scalia’s replacement will
be safe (i.e., palatable enough to withstand Congress’ partisan wrangling),
reliable and most important of all, an extension of the American police state.

With the old order dying
off or advancing into old age rapidly, we’ve arrived at a pivotal point in the
makeup of the Supreme Court. With every vacant seat on the Court and in key
judgeships around the country, we are witnessing a transformation of the courts
into pallid, legalistic bureaucracies governed by a new breed of judges who
have been careful to refrain from saying, doing or writing anything that might
compromise their future ambitions.

Today, the judges most
likely to get appointed today are well-heeled, well-educated (all of them
attended either Yale or Harvard law schools) blank slates who have traveled a
well-worn path from an elite law school to a prestigious judicial clerkship and
then a pivotal federal judgeship. Long gone are the days when lawyers without
judicial experience such as Earl Warren, William Rehnquist, Felix Frankfurter,
and Louis Brandeis could be appointed to the Supreme Court.

As Supreme Court
correspondent Dahlia Lithwick points out, “a selection process that discourages
political or advocacy experience and reduces the path to the Supreme Court to a
funnel” results in “perfect judicial thoroughbreds who have spent their entire
adulthoods on the same lofty, narrow trajectory.”

In other words, it really
doesn’t matter whether a Republican or Democratic president appoints the next
Supreme Court justice, because they will all look alike (in terms of their
educational and professional background) and sound alike (they are primarily
advocates for the government).

Given the turbulence of
our age, with its police overreach, military training drills on American soil,
domestic surveillance, SWAT team raids, asset forfeiture, wrongful convictions,
and corporate corruption, the need for a guardian of the people’s rights has
never been greater.

Unfortunately, as I
document in Battlefield America: The War on the American People, what we have
been saddled with instead are government courts dominated by technicians and
statists who march in lockstep with the American police state.

This is true at all
levels of the judiciary.

Thus, while what the
nation needs is a constitutionalist, what we will get is a technician.

It’s an important
distinction.

A legal constitutionalist
believes that the authority of government derives from and is limited by a body
of fundamental law (the Constitution) and strives to hold the government
accountable to abiding by the Constitution. A judge of this order will uphold
the rights of the citizenry in the face of government abuses.

Justice William O.
Douglas, who served on the Supreme Court for 36 years, was such a
constitutionalist. He believed that the “Constitution is not neutral. It was
designed to take the government off the backs of the people.” Considered the
most “committed civil libertarian ever to sit on the court,” Douglas was
frequently controversial and far from perfect (he was part of a 6-3 majority in
Korematsu vs. United States that supported the government’s internment of
American citizens of Japanese descent during World War II). Even so, his
warnings against a domineering, suspicious, totalitarian, police-driven
surveillance state resonate still today.

A legal technician, on
the other hand, is an arbitrator of the government’s plethora of laws whose
priority is maintaining order and preserving government power. As such, these
judicial technicians are deferential to authority, whether government or
business, and focused on reconciling the massive number of laws handed down by
the government.

John Roberts who joined
the Supreme Court in 2005 as Chief Justice is a prime example of a legal
technician. His view that the “role of the judge is limited…to decide the cases
before them” speaks to a mindset that places the judge in the position of a
referee. As USA Today observes, “Roberts’ tenure has been marked by an
incremental approach to decision-making — issuing narrow rather than bold
rulings that have the inevitable effect of bringing the same issues back to the
high court again and again.”

Roberts’ approach to
matters of law and justice can best be understood by a case dating back to his
years on the U.S. Court of Appeals for the District of Columbia. The case
involved a 12-year-old black girl who was handcuffed, searched and arrested by
police—all for eating a single French fry in violation of a ban on food in the
D.C. metro station. Despite Roberts’ ability to recognize the harshness of the
treatment meted out to Ansche Hedgepeth for such a minor violation—the little
girl was transported in the windowless rear compartment of a police vehicle to
a juvenile processing center, where she was booked, fingerprinted, and detained
for three hours, and was “frightened, embarrassed, and crying throughout the
ordeal”—Roberts ruled that the girl’s constitutional rights had not been
violated in any way.

This is not justice meted
out by a constitutionalist.

This is how a technician
rules, according to the inflexible letter of the law.

Circuit Judge Sri Srinivasan of the DC Court of Appeals, who is rumored to be a
favorite pick for Scalia’s spot on the court, is another such technician. When
asked to strike down a 60-year-old ban on expressive activities in front of the
Supreme Court Plaza, Srinivasan turned a blind eye to the First Amendment.
(Ironically, the Supreme Court must now decide whether to declare its own free
speech ban unconstitutional.)

By ruling in favor of the
ban, Srinivasan also affirmed that police were correct to arrest an
African-American protester who was standing silently in front of the Supreme
Court wearing a sign protesting the police state on a snowy day when no one was
on the plaza except him.

Srinivasan’s rationale?
“Allowing demonstrations directed at the Court, on the Court’s own front
terrace, would tend to yield the opposite impression: that of a Court engaged
with — and potentially vulnerable to — outside entreaties by the public.”

This view of the Supreme
Court as an entity that must be sheltered from select outside influences—for
example, the views of the citizenry—is shared by the members of the Court
itself to a certain extent. As Lithwick points out:

“The Court has become worryingly cloistered, even for a famously cloistered
institution… today’s justices filter out anything that might challenge their
perspectives. Antonin Scalia won’t read newspapers that conflict with his views
and claims to often get very little from amicus briefs. John Roberts has said
that he doesn’t believe that most law-review articles—where legal scholars
advance new thinking on contemporary problems—are relevant to the justices’
work. Ruth Bader Ginsburg, Scalia’s opera-going buddy, increasingly seems to
revel in, rather than downplay, her status as a liberal icon. Kennedy spends
recesses guest-teaching law school courses in Salzburg.”

Are you getting the
picture yet?

The members of the
Supreme Court are part of a ruling aristocracy composed of men and women who
primarily come from privileged backgrounds and who have a vested interest in
maintaining the status quo.

These justices, all of
whom are millionaires in their own rights, circulate among an elite, privileged
class of individuals, attending exclusive events at private resorts
orchestrated by billionaire oil barons, traveling on the private jets of
billionaires, and delivering paid speeches in far-flung locales such as Berlin,
London and Zurich.

When you’re cocooned within
the rarefied, elitist circles in which most of the judiciary operate, it can be
difficult to see the humanity behind the facts of a case, let alone identify
with the terror and uncertainty that most people feel when heavily armed
government agents invade their homes, or subject them to a virtual strip
search, or taser them into submission.

If you’ve never had to
worry about police erroneously crashing through your door in the dead of night,
then it might not be a hardship to rule as the Court did in Kentucky v.
King that police should have greater leeway to break into homes or apartments
without a warrant.

If you have no fear of
ever being strip searched yourself, it would be easy to suggest as the Court
did in Florence v. Burlington that it’s more important to make life easier for
overworked jail officials than protect Americans from debasing strip searches.

And if you have never had
to submit to anyone else’s authority—especially a militarized police officer
with no knowledge of the Constitution’s prohibitions against excessive force,
warrantless searches and illegal seizures, then you would understandably give
police the benefit of the doubt as the Court did in Brooks v. City of
Seattle, when they let stand a ruling that police officers who had clearly used
excessive force when they repeatedly tasered a pregnant woman during a routine
traffic stop were granted immunity from prosecution.

Likewise, if you’re not
able to understand what it’s like to be one of the “little guys,” afraid to
lose your home because some local government wants to commandeer it and sell it
to a larger developer for profit, it would be relatively easy to rule, as the
Supreme Court did in Kelo v. New London, that the government is within its
right to do so.

Now do you understand why
the Supreme Court’s decisions in recent years, which have run the gamut from
suppressing free speech activities and justifying suspicionless strip searches
to warrantless home invasions and conferring constitutional rights on
corporations, while denying them to citizens, have been characterized most
often by an abject deference to government authority, military and corporate
interests?

They no longer work for
us. They no longer represent us. They can no longer relate to our suffering.

In the same way that the
Legislative Branch, having been co-opted by lobbyists, special interests, and
the corporate elite, has ceased to function as a vital check on abuses by the
other two branches of government, the Judicial Branch has also become part of
the same self-serving bureaucracy.

Sound judgment,
compassion and justice have taken a back seat to legalism, statism and elitism.

Preserving the rights of
the people has been deprioritized and made to play second fiddle to both
governmental and corporate interests.

In the case of the People
vs. the Police State, the ruling is 9-0 against us.

So where does that leave us?

The Supreme Court of old
is gone, if not for good then at least for now.

It will be a long time before we have another court such as the Warren Court
(1953-1969), when Earl Warren served alongside such luminaries as William J.
Brennan, Jr., William O. Douglas, Hugo Black, Felix Frankfurter and Thurgood
Marshall.

The Warren Court handed
down rulings that were instrumental in shoring up critical legal safeguards
against government abuse and discrimination. Without the Warren Court, there
would be no Miranda warnings, no desegregation of the schools and no civil
rights protections for indigents.

Yet more than any single
ruling, what Warren and his colleagues did best was embody what the Supreme
Court should always be—an institution established to intervene and protect the
people against the government and its agents when they overstep their bounds.

That is no longer the
case.

We can no longer depend
on the federal courts to protect us against the government.

They are the
government.

Yet as is the case with
most things, the solution is far simpler and at the same time more complicated
than space allows, but it starts with local action—local change—and local
justice.If you want a revolution, start small, in your own backyard, and the
impact will trickle up.

If you don’t like the way
justice is being meted out in America, then start demanding justice in your own
hometown, before your local judges. Serve on juries, nullify laws that are
egregious, picket in front of the courthouse, vote out judges (and prosecutors)
who aren’t practicing what the Constitution preaches, encourage your local
newspapers to report on cases happening in your town, educate yourself about
your rights, and make sure your local judges understand that they work for you
and are not to be extensions of the police, prosecutors and politicians.

This is the only way we
will ever have any hope of pushing back against the police state.

Dr. Paul Craig Roberts was Assistant Secretary of the Treasury for Economic Policy and associate editor of the Wall Street Journal. He was columnist for Business Week, Scripps Howard News Service, and Creators Syndicate. He has had many university appointments. His internet columns have attracted a worldwide following. Roberts' latest books areThe Failure of Laissez Faire Capitalism and Economic Dissolution of the West